Prison Law Blog

Sara Mayeux

Justice Kennedy: For the Three Strikes Law Before He Was Against It?

with 2 comments

Earlier this month, Justice Kennedy of the U.S. Supreme Court spoke out against the California’s Three Strikes Law and the influence of the prison guard union over Golden State correctional policy. In an editorial today, the New York Times points out that when Justice Kennedy had the chance to overturn the law as unconstitutional, he passed:

Under the three-strikes law, a man named Gary Ewing was sentenced to 25 years to life for shoplifting three golf clubs from a golf pro shop.

Mr. Ewing challenged his sentence before the Supreme Court as a violation of the Eighth Amendment prohibition on cruel and unusual punishment. By a 5-to-4 vote, with Justice Kennedy in the majority, the court rejected the challenge.

P.S. I know, I know, my headline is a bit glib. Of course, holding that a law is constitutional does not necessarily mean you think the law is swell. And, Doug Berman at Sentencing Law & Policy points out problems with the NYT editorial, namely its “inane and pernicious … assertion that ‘[m]uch of the blame’ for California’s three-strikes law ‘lies with the Supreme Court.'”

P.P.S. Speaking of the Three Strikes Law, check out this interesting post over at California Corrections Crisis on the law’s historical antecedents.


Written by sara

February 16, 2010 at 10:22 am

2 Responses

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  1. I’d be interested if you could help me understand the three strikes law a bit better. Do the first couple of strikes have to be particularly heinous before the third puts you away for life?

    Hugh Paxton

    March 8, 2010 at 4:59 am

    • Hi Hugh – Three strikes laws vary by state. In California it works like this: The first two strikes have to be “violent or serious” felonies (the “or” is key — it’s not “violent and serious”). Like many legal terms this has a specific, technical definition so, the way that California has defined it, it could mean homicide or rape but it could also mean a non-violent burglary. The third strike can be *any* felony, so it doesn’t have to be “violent or serious” (e.g. could be felony petty theft). In contrast, in some other states, all three “strikes” must be violent. Here’s a recent, brief article but if you google around you can probably find some more extensive coverage:

      Another thing to note about California is that enforcement of the three strikes law varies widely by county; some counties prosecute everything that technically qualifies as a strike, other counties don’t. Practically speaking, the three strikes law works differently in San Francisco or Los Angeles than in rural Kern County. Here’s an article on that:


      March 8, 2010 at 7:49 am

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